1. The case originated in an application (no.
42914/98) against the Kingdom of Belgium lodged with the European Commission
of Human Rights (“the Commission”) under former Article 25 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Belgian national, Mr Wim Capeau (“the
applicant”), on 29 May 1998.

2. The applicant was represented by Mr N. van
Overloop, a lawyer practising in Ghent. The Belgian Government (“the
Government”) were represented by their Agent, Mr C. Debrulle, Director-General,
Federal Justice Department.

3. The applicant complained of a violation of
Articles 5 § 1 (c), 6 § 2 and 14 of the Convention, contending that
the statutory requirement to establish his innocence by adducing factual
evidence or submitting legal argument to that effect was incompatible
with the presumption of innocence.

4. The application was transmitted to the Court
on 1 November 1998, when Protocol No. 11 to the Convention came into
force (Article 5 § 2 of Protocol No. 11).

5. The application was allocated to the First
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of
the Convention) was constituted as provided in Rule 26 § 1.

6. By a decision of 6 April 2004, the Chamber
declared the application partly admissible.

7. The Government filed observations on the merits
of the case (Rule 59 § 1). The applicant did not submit any observations
within the time allowed.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. The applicant was born in 1967 and lives in
Ghent.

9. On 29 March 1994 he was arrested in connection
with an investigation concerning a case of arson committed on 25 May
1993.

10. On 1 April 1994 the Committals Division of
the Ghent Criminal Court refused to extend the validity of the arrest
warrant. On appeal, the Indictment Division of the Ghent Court of Appeal
overturned that decision and prolonged the applicant's pre-trial detention.

11. On 21 April 1994 the investigating judge rescinded
the warrant concerned.

12. On 29 June 1994 and 2 June 1995 respectively
the Committals Division and the Indictment Division, ruling on the action
to be taken on the basis of the investigation to date, held that there
was insufficient evidence to commit the applicant for trial and discontinued
the proceedings.

13. On 25 October 1996 the applicant claimed compensation
for unwarranted pre-trial detention, relying on the Law of 13 March
1973 (see “Relevant domestic law” below).

14. On 12 May 1997 the Minister of Justice refused
the applicant's claim on the ground that he had not “established his
innocence by adducing factual evidence or submitting legal argument
to that effect”, as required by section 28(1)(b) of the Law of 1973.
That requirement was justified, according to the Minister, in the case
of an order or judgment discontinuing criminal proceedings, given that
a discontinuation decision was not a bar to the reopening of the case
if new information or evidence were to come to light.

15. On 4 July 1997 the applicant contested the
Minister's decision by means of an application to the Unwarranted Pre-trial
Detention Appeals Board.

16. On 1 December 1997 the applicant appeared
before the Appeals Board, which upheld the refusal of his claim by a
decision taken on the same day and served on the applicant on 29 March
1998. It noted that the grounds for presuming the guilt of the applicant,
who had always denied committing the offence he stood accused of when
appearing before the courts investigating the charge, had been held
to be insufficient to justify committing him for trial. It observed
that, although the applicant had announced his intention of submitting
a pleading setting out the evidence in the file which “amply” proved
his innocence, he had not done so and had not replied to the Government's
submissions. Consequently, the Appeals Board found that he had not proved
his innocence as the law required (dat verzoeker derhalve het bij de wet van hem vereiste bewijs van
onschuld niet bijbrengt).

II. RELEVANT DOMESTIC LAW

17. At the material time the relevant provisions
of the Law of 13 March 1973 on compensation for unwarranted pre-trial
detention read as follows:

Section 27

“(1) Any person deprived of his liberty in conditions
incompatible with Article 5 of the Convention for the Protection of
Human Rights and Fundamental Freedoms of 4 November 1950, approved by
the Law of 18 May 1955, shall be entitled to compensation.

(2) The action for compensation shall be brought
in the ordinary courts in accordance with the formalities laid down
in the Judicial Code and directed against the Belgian State in the person
of the Minister of Justice.”

Section 28

“(1) A compensation claim may be lodged by any
person held in pre-trial detention for more than eight days, provided
the detention concerned or its prolongation were not provoked by his
own conduct:

(a) if he has been exculpated directly or indirectly
by a judicial decision that has become final;

(b) if after being discharged through an order
or judgment discontinuing the proceedings he establishes his innocence
by adducing factual evidence or submitting legal argument to that effect;

(c) if he has been arrested or kept in detention
after expiry of any statutory limitation period;

(d) if he has been discharged through an order
or judgment discontinuing the proceedings which expressly states that
the act which gave rise to the pre-trial detention did not constitute
a criminal offence.

(2) The amount of compensation shall be determined
equitably, and with regard to all the circumstances of public and private
interest.

(3) Where the person concerned is not able to
bring compensation proceedings in the ordinary courts, compensation
may be claimed by means of a written request to the Minister of Justice,
who shall rule on it within six months.

The compensation shall be awarded by the Minister
of Justice from the Treasury account if the conditions set out in subsection
(1) above are satisfied.

Where compensation is refused, or the amount
is considered insufficient, or the Minister of Justice has not replied
within six months of the request, the person concerned may apply to
the Board set up in accordance with subsection (4) below.

In the case of prosecution for one of the offences
defined in Articles 147, 155 and 156 of the Criminal Code, committed
against the person detained, the six months mentioned in the preceding
paragraph shall begin to run on the day when that prosecution is closed
by a decision that has become final.

(4) An Appeals Board is hereby instituted to hear
appeals against decisions taken by the Minister of Justice, or rule
on compensation claims where the Minister has not reached a decision
in accordance with the conditions set out in subsection (3) above.

The Appeals Board shall be composed of the President
of the Court of Cassation, the President of the Conseil d'Etat and the President of the Belgian Bar Association
or, where one or more of those persons are prevented from sitting, of
the Vice-President of the Court of Cassation, the Vice-President of
the Conseil
d'Etat and the Vice-President of the Bar Association.

The duties of secretary to the Appeals Board
shall be performed by one or more members of the registry of the Court
of Cassation appointed by its president.

The rules of procedure of the Appeals Board shall
be laid down by the Crown.

(5) Appeals and claims shall take the form of
applications in two copies signed by the claimant or his lawyer and
lodged with the registry of the Court of Cassation within sixty days
of the Minister's decision or of the expiry of the time within which
he should have announced it.

The Crown shall lay down the procedure before
the Appeals Board sitting in closed session.

The Appeals Board shall give its ruling on the
opinion expressed at the hearing by Principal Crown Counsel attached
to the Court of Cassation, after hearing the submissions of the parties.

The Appeals Board's decisions shall be delivered
at a public sitting. No appeal shall lie against them.

At the parties' request, an extract from the
Appeals Board's decision shall be published in the Moniteur belge, but the extract may not mention the amount
awarded. The costs of publication shall be borne by the Treasury.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6
§ 2 OF THE CONVENTION

18. The applicant complained that his compensation
claim had been refused on the ground that he had not established his
innocence by adducing factual evidence or submitting legal argument
to that effect. He argued that this constituted a breach of Article
6 § 2 of the Convention, which provides:

“Everyone charged with a criminal offence shall
be presumed innocent until proved guilty according to law.”

19. The Government referred to the Court's case-law.
In the instant case the decision to discontinue the proceedings against
the applicant had left open the possibility of reopening the case if
new evidence came to light. When examining the applicant's compensation
claim, the Appeals Board had noted that he had neither quantified the
claim nor informed it of the evidence in the file which established
his innocence, contrary to his stated intention. Furthermore, the applicant
had not replied to the submissions of the Ministry of Justice. Thus
he had neither attempted to adduce the evidence required nor provided
clarifications which might have permitted the Appeals Board to make
an equitable ruling on the damage he had allegedly sustained, if it
thought that was justified. The Appeals Board had therefore been compelled
to find that the applicant had not established his innocence. In doing
so it had identified a state of lingering suspicion which did not imply
any finding of guilt.

20. The applicant submitted that Article 6 §
2 of the Convention was breached where a person was refused compensation
for pre-trial detention imposed for a reason which implied his or her
guilt when there had been no formal finding to that effect and when
the claimant had not had the opportunity to exercise the rights secured
by Article 6 of the Convention. In the present case, the reasoning given
in the decisions of the Minister of Justice and the Appeals Board left
no doubt that the applicant's claim had been refused on account of his
presumed guilt. The forms of words used went well beyond mere suspicions
or suppositions. The fact that claimants were required by section 28(1)(b)
of the Law of 1973 to adduce evidence of their innocence established
a presumption of guilt incompatible with Article 6 § 2 of the Convention.
In short, there had been a violation of that provision.

21. The Court reiterates that the Convention must
be interpreted in such a way as to guarantee rights that are practical
and effective as opposed to theoretical and illusory (see, among other
authorities, Artico v. Italy, judgment of 13 May 1980, Series A no. 37,
pp. 15-16, § 33; Soering v. the United Kingdom, judgment of 7 July 1989, Series
A no. 161, p. 34, § 87; and Cruz Varas and Others v. Sweden, judgment of 20 March 1991,
Series A no. 201, pp. 35-36, § 99); that also applies to the right enshrined
in Article 6 § 2 (see Allenet de Ribemont v. France, judgment of 10 February 1995, Series
A no. 308, p.16, § 35).

22. According to the Court's case-law, the presumption
of innocence is infringed if a judicial decision concerning a person
charged with a criminal offence reflects an opinion that he is guilty
before he has been proved guilty according to law. It suffices, even
in the absence of any formal finding, that there is some reasoning suggesting
that the court regards the accused as guilty. The scope of Article 6
§ 2 is not therefore limited to pending criminal proceedings but extends
to judicial decisions taken after prosecution has been discontinued
(see, among other authorities, Minelli v. Switzerland, judgment of 25 March 1983, Series A
no. 62; Englert v. Germany, judgment of 25 August 1987, Series A no. 123-B;
and Nölkenbockhoff
v. Germany, judgment of 25 August 1987, Series A no. 123-C) or
after an acquittal (see Sekanina v. Austria, judgment of 25 August 1993, Series A no.
266-A; Rushitiv. Austria,
no. 28389/95, 21 March 2000; and Lamanna v. Austria, no. 28923/95, 10 July 2001).

23. In addition, the Court observes that, according
to its settled case-law, neither Article 6 § 2 nor any other provision
of the Convention gives a person “charged with a criminal offence”
a right to reimbursement of his costs or a right to compensation for
lawful detention on remand where proceedings against him are discontinued
(see Dinares
Peñalver v. Spain (dec.), no. 44301/98, 23 March 2000; see also Englert
and Sekanina,
cited above, p. 54, § 36, and pp. 13-14, § 25, respectively). Merely
refusing compensation does not therefore in itself infringe the presumption
of innocence (see, mutatis mutandis, Nölkenbockhoff and Minelli, cited above, p. 79, § 36, and p. 17, §§ 34-35,
respectively).

24. The Court is therefore required to determine
whether the Unwarranted Pre-trial Detention Appeals Board, through the
way it conducted its business, the reasons it gave for its decision
or the language in which it set out its reasoning, allowed doubt to
be cast on the presumption of the applicant's innocence, when he had
not been proved guilty according to law.

25. The Court notes that the Appeals Board's refusal
was based solely on the fact that the applicant had not supported his
compensation claim by adducing evidence of his innocence. Although it
was founded on section 28(1)(b) of the Law of 13 March 1973, which expressly
provides that a person against whom proceedings have been discontinued
must establish his innocence by adducing factual evidence or submitting
legal argument to that effect, such a requirement, without qualification
or reservation, casts doubt on the applicant's innocence. It also allows
doubt to attach itself to the correctness of the decisions by the investigating
courts, notwithstanding the observation in the Appeals Board's decision
that the evidence against the applicant at the time when he appeared
before those courts had been judged insufficient to justify committing
him for trial. It is true that the voicing of suspicions regarding an
accused's innocence is conceivable as long as the conclusion of criminal
proceedings has not resulted in a decision on the merits of the accusation
(see Sekanina,
cited above, pp. 15-16, § 30), and that in Belgian law a discontinuation
order does not bar the reopening of a case in the event of new evidence
or new developments. However, the burden of proof cannot simply be reversed
in compensation proceedings brought following a final decision to discontinue
proceedings. Requiring a person to establish his or her innocence, which
suggests that the court regards that person as guilty, is unreasonable
and discloses an infringement of the presumption of innocence. The Court
would observe in that connection that, in criminal cases, the whole
matter of the taking of evidence must be looked at in the light of Article
6 § 2 and requires, inter alia, that the burden of proof be on the prosecution
(see Barberà,
Messegué and Jabardo v. Spain, judgment of 6 December 1988,
Series A no. 146, p. 33, §§ 76-77). Consequently, the reasoning of
the Unwarranted Pre-trial Detention Appeals Board was incompatible with
respect for the presumption of innocence.

26. In conclusion, there has been a violation
of Article 6 § 2 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE
14 OF THE CONVENTION

27. The applicant submitted that the provisions
of the Law of 13 March 1973 were discriminatory in that they imposed
different conditions for the award of compensation for unwarranted pre-trial
detention depending on whether the remand prisoner had been discharged
by the investigating court on the ground that there was no case to answer
or acquitted by the trial court. He argued that this constituted discrimination
in relation to the right guaranteed by Article 6 § 2 of the Convention.
Article 14 provides:

“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national
minority, property, birth or other status.”

28. The Government argued that there had been
no violation of Article 14 of the Convention in the case. They contended
that the difference in treatment complained of was justified by the
provisional nature of a discontinuation decision given that, unlike
an acquittal, a discontinuation decision based on the ground that there
was no case to answer did not bar the reopening of the case if new evidence
came to light.

29. The applicant submitted that the situation
in issue constituted an unjustified difference in treatment in that
a person whom the investigating court had decided it could not commit
for trial because there was no case to answer had to establish his or
her innocence by adducing factual evidence or submitting legal argument
to that effect, whereas a person who had been committed for trial –
and against whom therefore, it had to be supposed, there was some serious
prima facie evidence – but was later acquitted, even with the benefit
of the doubt, did not have to prove his or her innocence.

30. The Court considers that this complaint relates
to the same legal situation as the one in respect of which it has found
a breach of Article 6 § 2 of the Convention, and therefore does not
deem it necessary to examine it separately.

III. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

31. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

32. After the decision on admissibility, the applicant's
counsel did not submit any claim for just satisfaction within the time
allowed, although in the letter sent to him on 8 April 2004 his attention
had been drawn to Rule 60 of the Rules of Court, which provides that
any claim for just satisfaction under Article 41 must be set out in
the written observations on the merits. Accordingly, since the Court
received no reply within the time prescribed in the letter accompanying
the decision on admissibility, it considers that there is no reason
to award any sum under Article 41 of the Convention (see Willekensv. Belgium, no. 50859/99, § 27, 24 April 2003).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 § 2 of
the Convention;

2. Holds that it is not necessary to consider whether there has
been a violation of Article 14 of the Convention.

Done in French, and notified in writing
on 13 January 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.